9 N.E.3d 737
Ind. Ct. App.2014Background
- Victim (K.B.), 22, and defendant (Thomas), 48, were college students who knew each other from a play; K.B. did not consent to a sexual relationship.
- On March 12, 2012, Thomas drove K.B. to a park and, after threats and physical force, digitally penetrated her, performed oral sex, and forced her to touch him; she reported injuries consistent with assault.
- Thomas gave a police statement denying sexual contact but admitting nonconsensual touching over clothing; the State charged him with multiple counts of criminal deviate conduct and sexual battery.
- At trial the jury convicted Thomas on two counts of criminal deviate conduct (Class B felonies) and one count of sexual battery (Class D felony); he received an aggregate 24-year sentence.
- On appeal Thomas argued the prosecutor committed misconduct in closing by commenting on his failure to testify, violating the Fifth Amendment privilege against self-incrimination.
- The trial court admonished the jury mid-argument for one comment but allowed the prosecutor to clarify other remarks; Thomas objected to both comments (but did not request an admonishment for the second).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Whether prosecutor’s first closing remark improperly commented on defendant’s silence | The remark was harmless given strong evidence and the court’s curative admonition and instructions | The comment invited adverse inference from Thomas’s decision not to testify, violating the Fifth Amendment | Court: First remark was prosecutorial misconduct but harmless beyond a reasonable doubt because of effective curative instruction |
| Whether prosecutor’s second closing remark improperly commented on defendant’s silence | The comment referred to defendant’s prior police statement and absence of defense evidence, not silence; thus proper | The remark implicitly referenced defendant’s failure to testify and penalized silence | Court: Second remark did not constitute misconduct; it properly compared police statement to victim’s testimony |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (1965) (prosecutor may not comment on defendant’s failure to testify)
- Boatright v. State, 759 N.E.2d 1038 (Ind. 2001) (test for whether comment invites adverse inference from silence)
- Reynolds v. State, 797 N.E.2d 864 (Ind. Ct. App. 2003) (example of impermissible comment on defendant’s silence)
- Nichols v. State, 974 N.E.2d 531 (Ind. Ct. App. 2012) (preservation rules: contemporaneous objection and request for admonishment/mistrial)
- Robinson v. State, 693 N.E.2d 548 (Ind. 1998) (failure to request admonishment or mistrial waives claim on appeal)
- Moore v. State, 669 N.E.2d 773 (Ind. 1996) (presumption that juries follow curative admonitions)